Fri February 28, 2014
Federal Judge Stays Kentucky Out-of-State Same-Sex Marriage Recognition Until March 20
Update 5:10 p.m.: 'Ball ... in Jack Conway's Court'
U.S. District Judge John Heyburn's order on Thursday effectively meant that legally married same-sex couples were recognized in Kentucky.
The stay Heyburn ordered on Friday means that that's no longer the case—at least until March 20, said Joe Dunman, an attorney for the plaintiffs.
To summarize, the state attorney general's office argued in a conference Friday afternoon that officials needed time to figure out how recognizing out-of-state same-sex couples affected the state's rules and regulations—to avoid confusion in, for example, the state's 120 county clerks offices on how to list people on driver's licenses.
A plaintiffs' attorney argued that the harm done to same-sex married couples outweighed such concerns.
Here's Thursday's story about the order. And here's a story from earlier in February when Heyburn wrote that Kentucky's 2004 same-sex marriage ban violated the U.S. Constitution's guarantee of equal protection. The order only applied to out-of-state same-sex marriages, because that was the matter brought in the lawsuit, initially called Bourke v. Beshear.
Conway still has 30 days from Thursday to decide whether to appeal.
“At this time, all I can say is that the ball is in Jack Conway’s court," Dunman said. "It’s his decision to make whether or not this final order is appealed, whether or not we drag this on longer than it needs to be dragged out.”
As noted below, Conway's office said the order buys the state time to figure out its next move.
Dunman noted that the judge could issue another stay along with an appeal. In Friday's conference, Heyburn noted a situation in Utah where federal courts denied stays, but the Supreme Court stepped in and issued its own stay. But Heyburn noted that that situation is different, because Utah's question involved allowing same-sex marriages to be legally performed.
To this point, Heyburn has only issued orders on the recognition of out-of-state same-sex marriages. Two same-sex couples denied marriage licenses in Louisville have asked to join the case, now called Love v. Beshear, to get a decision on the issuance of marriage licenses in Kentucky. No order has been made on that aspect of the lawsuit.
Heyburn's order is below:
Update 5 p.m.: Conway's Office Responds
The Kentucky Attorney General's Office is calling a federal judge's decision to stay implementation of an order for the state to recognize out-of-state same-sex marriages "appropriate."
The 20-day stay is appropriate, as it gives the Commonwealth time to determine whether or not to file an appeal and/or how to implement the judge’s order," Conway spokeswoman Allison Martin said in an email.
Update 4:26 p.m.: Implementation Stayed Until March 20
A federal judge has issued a stay until March 20 on his order that Kentucky must recognize out-of-state same-sex marriages.
Here, the applicant has not argued that it will appeal or that it is likely to succeed on any such appeal. The applicant has not made a strong argument that it will be harmed, absent a stay. The applicant does argue that some time is necessary to implement the Order and, absent planning, considerable confusion could result. The issuance of the stay will maintain the status quo and prevent some confusion, but at the cost of extending an unconstitutional policy. The public interest is twofold: that the Constitution be upheld; and that changes in the law be implemented consistently and without undue confusion. Confusion could result from state or local officials being unaware of their precise responsibilities. However, the implementation of the Order without confusion is possible with reasonable effort.
More coming soon.
Earlier: A federal judge is expected to rule by 4 p.m. Friday on the attorney general's request to delay Kentucky's recognition of out-of-state same-sex marriages.
U.S. District Judge John G. Heyburn issued a final order Thursday requiring Kentucky to recognize same-sex marriages entered into in other jurisdictions.
Heyburn's order was based on his opinion earlier in February that Kentucky's 2004 ban on same-sex marriage violated the equal protection rights guaranteed in the U.S. Constitution.
The order meant, in effect, that every same-sex couple already in a marriage recognized outside of Kentucky had the same rights in the state. It presumably affected matters ranging from hospital visitation rights to the joint filing of taxes.
But, before the ruling was entered, Attorney General Jack Conway's office asked the judge for a 90-day stay—their reason was, in part, to consider how to implement the recognition of married same-sex couples. Conway's office has 30 day to appeal the ruling and has not indicted whether it will.
Attorneys held a conference Friday afternoon at the federal courthouse in Louisville. There, an assistant attorney general argued that Kentucky officials needed time to implement the recognition of out-of-state same-sex marriages.
Conway's office has already gotten calls from county officials seeking guidance, the assistant attorney general, Clay Barkley, told the judge via teleconference. He said the state "simply wants to have an orderly process." (He did not indicate whether the state will appeal.)
But plaintiffs' attorney Laura Landenwich, also speaking by teleconference, said such issues were "speculation, but we know the plaintiffs are being harmed."